NLM [2020] NSWCATGD 15

NCAT Guardianship|2020-01-29|Before: Emeritus Professor P, Foreman AM

Background

NLM is a 94-year-old woman of Chinese descent who lives at an aged care facility in Inner West Sydney. We were told that NLM's husband passed away many years ago as have her two sons. NLM's nephew and his wife, Ms Z, remain in contact with the aged care facility and Ms Z took part in this hearing as is outlined below.
The applicant was ZTC, Acting Director of Nursing of the aged care facility. The application for the appointment of a guardian was made because NLM does not have the capacity to make decisions and someone needed to be appointed to make decisions on her behalf especially in relation to clinical decisions.
At the commencement of the hearing, the Tribunal was informed by the applicant that on the previous day the management of the aged care service provider announced that the aged care facility in Inner West Sydney will close on or around 29 February 2020. We were given a copy of a letter dated 28 January 2020 from the Chief Executive Officer of the aged care service provider that confirmed this and gave as the reason for the closure "the declining numbers of residents and the inability to redevelop the facility on the existing site to the required standard". We were also told, and the letter confirmed, that the aged care service provider has identified alternative accommodation options for all residents. We were told that NLM is able to move to another facility of the aged care service provider in West Sydney if she, or someone with the authority to decide on her behalf, believes that it would be in NLM's interests to move to that facility.

Clinical evidence

In a Health Professional Report Form completed on 16 January 2020, Dr Y indicated that NLM has severe dementia and is incapable of decision making in relation to any major aspect of her life.
A medical discharge summary from a public hospital dated 5 December 2019 indicated that NLM was admitted with reduced oral intake, reduced mobility and risk of falls. NLM was diagnosed with urosepsis on that occasion and was referred to the community palliative care team.
Progress notes provided by the aged care service provider indicate that NLM has since been assessed by a palliative care nurse who noted that NLM is not eating solid food and is only drinking.

What did the Tribunal have to decide?

The questions which had to be decided by the Tribunal were:

Is NLM someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?
Should the Tribunal make a guardianship order and if so, what order should be made?
Who should be the guardian?
How long should the order last?

Is NLM someone for whom the Tribunal could make an order because she has a disability which prevents her from being able to make important life decisions?

Section 14 of the Guardianship Act 1987 (NSW) ("the Act") provides that the Tribunal may make a guardianship order for a person if it is satisfied that she is "a person in need of a guardian". A person in need of a guardian is "a person who because of a disability is totally or partially incapable of managing his or her person": s 3(1) of the Act. A person with a disability is a person who is: 1. intellectually, physically, psychologically or sensorily disabled; 2. of advanced age; 3. a mentally ill person within the meaning of the Mental Health Act 2007 (NSW) ; or 4. otherwise disabled and by virtue of that fact is restricted in one or more major life activities to such an extent that he or she requires supervision or social habilitation: s 3(2) of the Act.
The clinical reports outlined above were consistent in their description of the impact that NLM's cognitive decline has on her functioning. We accepted the evidence provided in those reports as to the extent of NLM's cognitive impairment resulting from dementia and her current health status requiring the involvement of the palliative care team.
There was no disagreement with the content of these reports by the care staff who participated in the hearing. We also note that our observation of NLM was consistent with the content of the clinical reports.
Based on the evidence of the extent of her cognitive impairment contained in the clinical reports outlined, which we accept, we were satisfied that NLM is restricted in important major life activities to such an extent that she requires supervision or social habilitation. She has a significant "need for services to help [her] function normally in community with others" (P v NSW Trustee and Guardian [2015] NSWSC 579, [303]).
We were satisfied that NLM is a person for whom we could make a guardianship order as she is a person who because of her disability, namely dementia, is incapable of managing her own person.

Should the Tribunal make a guardianship order and what order should be made?

The Tribunal must consider all of the following matters set out in s 14(2) of the Act before exercising its discretion to make a guardianship order: 1. the views (if any) of: 1. the person, and 2. the person's spouse, and 3. the person's carer and 1. the importance of preserving the person's existing family relationships, and 2. the importance of preserving the person's particular cultural and linguistic environments, and 3. the practicability of services being provided to the person without the need for the making of such an order.
These matters have no hierarchy or weighting and each is a mandatory consideration. However, the Tribunal must undertake a balancing exercise for its consideration of the matters in s 14(2) of the Act. When undertaking this task the Tribunal may be guided by the principles that are set out in s 4 of the Act (see IF v IG [2004] NSWADTAP 3).
The principles contained in s 4 of the Act are as follows: 4 General principles It is the duty of everyone exercising functions under this Act with respect to persons who have disabilities to observe the following principles: (a) the welfare and interests of such persons should be given paramount consideration, (b) the freedom of decision and freedom of action of such persons should be restricted as little as possible, (c) such persons should be encouraged, as far as possible, to live a normal life in the community, (d) the views of such persons in relation to the exercise of those functions should be taken into consideration, (e) the importance of preserving the family relationships and the cultural and linguistic environments of such persons should be recognised, (f) such persons should be encouraged, as far as possible, to be self-reliant in matters relating to their personal, domestic and financial affairs, (g) such persons should be protected from neglect, abuse and exploitation, (h) the community should be encouraged to apply and promote these principles.
We were satisfied that a guardianship order should be made for NLM for the following reasons.
We were told that NLM's niece, at the request of the aged care service provider, has recently signed what purported to be an Advanced Care Directive (ACD) for NLM. As we discussed with the care staff attending the hearing, this document is invalid because an advanced care directive must be signed by the person to whom it relates after the person is informed of the purpose and effect of an ACD at a time when that person is able to understand the facts and choices involved an consequences of their decision. An ACD cannot be signed by any other person (IJU [2019] NSWCATGD 21, [32]).
As the purported ACD made in relation to NLM is invalid, and given the evidence about NLM's current health status, we were satisfied that a guardian should be given the authority to consent to medical and dental treatment on NLM's behalf and to make decisions about her health care more generally particularly in relation to palliative care and end of life decision making.
We also considered whether to include an accommodation function in the order due to the information provided at the start of the hearing that the aged care facility is closing down. After hearing from Ms Z we decided not to do so as Ms Z indicated her willingness to be involved on an informal basis in the decision making on behalf of NLM in relation to whether the aged care facility in West Sydney is a suitable place for NLM to live or whether other options need to be considered. Leaving this significant decision to an involved family member recognises the importance of this family relationship to NLM and would also encourage cultural and linguistic considerations to be taken into account in relation to any decision made about NLM's accommodation.

Who should be the guardian?

Ms Z told us that whilst she was willing to be involved in decision making about NLM's new accommodation, she was not comfortable making decisions about NLM's health care and end of life decisions. Ms Z told us that her husband (NLM's nephew) feels similarly. NLM has a younger brother (Ms Z's father-in-law) but we were told that he has had little contact with NLM over the last 10 years or so and would not be able to be involved in decision making.
In the absence of any other person available to be considered in the role of guardian, we had no option but to appoint the Public Guardian as NLM's guardian about health care and medical treatment decisions and accordingly made that appointment.

How long should the order last?

An initial guardianship order can be made for a period of up to one year from the date on which it was made.
After hearing from the parties, we decided to make a 12 month order for NLM. We accepted that it is likely that significant decisions about NLM's health care and medical treatment will need to be made over that period of time. The order will be reviewed at the end of its term.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2020

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